General Counsel of the District of
Columbia in Superior Court of the District of Columbia
Plaintiff’s Memorandum in Opposition to Defendant’s Motion to Dismiss the
Complaint, or in the Alternative, for Summary JudgmentJune 20, 2003

Defendant Mayor Anthony A. Williams asserts in his motion
for dismissal, or in the alternative, for summary judgment that: (1) the
1995 Congressional amendments to the IG statute "ratify the
separation of powers principles in the Home Rule Act" (Mayor's
Memorandum at 10); (2) the Council's action in making the IG statute
applicable to the incumbent Inspector General, is an "attempt by
the legislature to exercise the executive power of removal" (Id. at
11); (3) the Council's passage of the IG Qualifications Laws on an
emergency basis was a scheme "purposely structured to avoid the
Congressional review process for acts passed by the Council, as only
temporary and permanent legislative acts need be submitted for a period
of Congressional review before they can become effective" (Id. at
13); (4) "the Complaint and its request for a mandamus violates
every principle governing the grant of such writs in this or any other
Court." (Id. at 15); and (5) that the request for mandamus action
"is procedurally defective because it attempts to avoid the
method duly provided for in the D.C. Official Code for a civil action of
quo warranto to test the legality of officeholding by a public officer
of the District of Columbia." (Id. at 16). The Mayor's assertions
are flawed for several reasons.

The Mayor's motion is devoid of any discussion as to the
legal basis for the Mayor's refusal to enforce the duly adopted
Inspector General Qualifications Emergency Amendment Act of 2003. This
is no doubt because no such support exists, especially in light of
section 422 of the Home Rule Act that mandates that the Mayor properly
execute "all laws relating to the District." The Mayor
attempts to distract the Court's attention by focusing on the alleged
improper motives for the adoption of the legislation. The Mayor would
have this Court believe that an almost unanimous Council would enact the
IG Qualification Laws on an emergency, temporary, and permanent basis
solely to remove the incumbent Inspector General. The Mayor's arguments
that the Council acted with a devious motive is insulting both to the
Members of the Council and to the people who elected them. This Court
cannot decide this case based on the insulting and false assumption that
the District's elected leaders would act with such bad faith. Rather,
the Court must accord deference to the judgment of a legislature by
presuming that it legislates in good faith. (Council Opening Memorandum
at 20-21).

The Mayor's arguments wrongfully minimizes the authority
given the Council in sections 302 and 404 of the Home Rule Act and
defers almost exclusively to the determination made by the Congress with
respect to the qualifications policy for the local Inspector General,
even though Congress did not preclude the Council from making policy
changes to the IG statute.

The Mayor does not dispute that the Council has the
ability to change the qualifications for office holders. Indeed, the
Mayor could not assert such in light of the broad legislative authority
given the Council in sections 302 and 304 of the Home Rule Act. It
appears that the Mayor's only objection is that the Council may not
apply such qualification changes where it has the incidental effect of
having the incumbent Inspector General vacate the office on the grounds
that the legislation violates the executive's removal power. However, as
more fully discussed below, the legislative power to prescribe
qualifications is not inconsistent with the executive power of
appointment, from which the removal power is derived. The state cases
cited by the Mayor do not support his proposition that legislation which
causes a position of the incumbent to become vacant is an exercise of
the power of removal. In fact, the cases demonstrate that the act of the
Council was within its proper legislative authority. Where the change
effected by the legislation is substantial, as is the change in
qualifications effected by the IG Qualifications Emergency Amendment Act
of 2003, it is a valid exercise of legislative power.

The awards and commendations received by the incumbent
Inspector General and the other documents attached to the affidavit of
the incumbenf IG are completely irrelevant to the issues at hand, for
they have no bearing on the authority of the Council to adopt this
legislation or on the ability of the Mayor to declare a law null and of
no effect and to refuse to enforce a duly adopted law of the District of
Columbia, following a Council override of his veto, without first
seeking a judicial determination as to its validity, which are the
issues before this court.

The only questions raised in this case are: (I) whether,
in the absence of a judicial determination, following a Council override
of his veto, the Mayor may refuse to implement or enforce a facially
valid law; (2) whether, in the absence of a judicial determination, the
Mayor may declare a facially valid law null, and of no effect;
and (3) whether the Council. in exercising its section 302 and 404 Home
Rule Act powers to enact new qualifications for the position of
Inspector General, which it deems necessary for an office holder,
improperly intrudes upon the Mayor's power to remove the Inspector
General for cause, because it has the incidental effect of causing the
incumbent Inspector General to vacate the office. The answer to all
these questions is "no."

I. THE COUNCIL HAS A RIGHT TO A REMEDY FOR THE MAYOR'S VIOLATION OF SECTION 422 OF THE DISTRICT CHARTER.

The Mayor has expressed the view, and asked that this
Court find, that the Council "is withouf any judicial
recourse" to address the Mayor's violation of the Home Rule Act.
Mayor's Supplemental Brief on Issues of Standing at 11. This is
inconsistent with our principles of justice. Chief Justice Marshall's
now famous quote in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.
Ed. 60 (1803)), that it is a "general and indisputable rule, that
where there is a legal right, there is also a legal remedy. ..", is
applicable to this case. The Mayor has willfully disregarded his
obligation under the Home Rule Act, directed subordinate and independent
officers of the government not to obey a validly enacted statute, and
has declared that certain provisions of the law are null and of no
effect, without seeking a judicial determination. This action is a
violation of the rights of the Council, and its members under the Home
Rule Act, in direct conflict with the Mayor's duties under the Act to
"execute all laws relating to the District . .. ," and has
rendered the votes of twelve members of the Council "null and of no
effect."

A. The Mayor Has
a Peremptory Duty under
Section 422 of the Home Rule Act, to Execute the Laws of the District of
Columbia, and the Mayor Has Violated That Duty.

The Mayor's duty to be performed is ministerial and his
obligation to act is peremptorily and plainly defined. National Treasury
Employees Union v. Nixon, 492 F.2d 587 (D.C. Cir. 1974). (The court
ruled in favor of plaintiff union and decreed that the President had a
constitutional duty to grant the federal pay increases as mandated by
Congress.). Explicit and unambiguous provisions of the District Charter1
prescribe and define the responsibilities of the Mayor. The duty imposed
upon the Mayor by the Home Rule Act is to "execute all laws of the
District ...." He has in the plainest terms refused to do so. All
that is required under the law at issue is that he determine whether the
current Inspector General meets the qualifications of the law and, if
not, nominate a new office holder. Under section 422(2) and (3) of the
Home Rule Act, the Mayor is responsible for administering all laws
relating to "appointment, promotion, discipline, separation, and
other conditions of employment," and for administering the
"personnel functions of the District". The abdication of these
duties set forth in the District Charter must have legal consequences.

This court has previously enjoined the Mayor from
violating the Home Rule Act and attempting to implement an invalid order
in conflict with his duties under the Act. In Barrio v. Bush, 581 A.2d
308 (D.C. 1990), the Mayor challenged a judgment of the Superior Court
of the District of Columbia, which entered a permanent injunction
ordering the Mayor not to reduce the Board of Education's budget after
the Mayor had issued an order that mandated an overall reduction from
all District departments and agencies except the police department. The
Court of Appeals affirmed the judgment of the trial court that
the Mayor could not ignore the terms of a settlement agreement based
upon his interpretation of subsequent statutory changes without first
seeking "judicial permission to modify the decree. ..." Id. at
311. Barry v. Bush completely supports the proposition advanced by the
Council that the Mayor cannot ignore or refuse to implement a validly
enacted law without first seeking judicial approval. Cf. District o/
Columbia v. American Fed'n of Govt Employees, 619 A.2d 77, 88 (D.C.
1993) (Court in Barn, v. Bush held only that [the act] prohibited
unilateral budget cuts by the Mayor, acting without the Council). See
also, Kelly v. Parents United, 641 A.2d 159 (D.C. 1994), in which the
Court of Appeals affirmed an award of injunctive relief against the
Mayor and an agency director, mandating compliance with the District of
Columbia Public School Nurse Assignment Act of
1987 (then D.C. Code § 31-2421); and Parents United for
the Dist. of Columbia Pub. Sch. v. District of Columbia, 699 A.2d 1121
(D.C. 1997) (Affirming order that District officials had failed in their
statutory duty to address Fire Code violations in the District's public
schools, required the Fire Chief to conduct periodic inspections of
public school buildings, abate Fire Code violations, and ordering
immediate closing of any public school building having life threatening
Fire Code violations).

Courts in other jurisdictions have held that residents of
a city have the legal right to compel city officials to comply with the
city charter provisions. State ex rel. Vanna v. Maple Heights City
Council, Cuyahoga County, App. No. 55068, 1988 Ohio App. LEXIS 5215
(Ohio Ct. App., Cuyahoga County Dec. 29, 1988); affirmed in part and
reversed in part by State ex rel. Vana v. Maple Heights City Council,
561 N.E.2d 909 (Ohio 1990) (action to remove councilmember for conflict
of interest; court affirmed as to issuance of writ of mandamus, reversed as to quo warranto); New York Pub. Interest
Research Group v. Dinkins, 632 N.E 2d 1255 (N.Y. 1994) (affirming
issuance of a writ of mandamus to compel the city to comply with its
charter allocating funds to Independent Budget Office); Duffs v. Branch.
828 S.W.2d 211 (Tex. 1992) (court conditionally granted relator city
residents' request for writ of mandamus, because under the city charter,
respondents, city council and mayor, were required to order the recall
election); Wimmer v. Knight, 259 P. 640 ( Okla. 1927) (Where a contract
between city leaders and an engineering firm violated the city charter
because the engineers were not city residents, were paid more than
allowed, and were not bonded, an injunction was appropriate.).

In this instance, the responsibility of the Executive to
comply with the law pending a judicial determination of
constitutionality is heightened because of the Mayor's own actions. It
is the Mayor's' function to make an initial interpretation of the terms
and application of a statute. It is another matter entirely where the
Mayor directs agencies to refuse to comply with that statute. "To
contend, that the obligation imposed on the president to see the laws
faithfully executed, implies a power to forbid their execution, is a
novel construction of the constitution, and entirely
inadmissible.". Kendall v. United States, 37 U.S. 524, 613 (1838).
The Mayor vetoed the bill on April 2, 2003, and nearly two months
later informs the Council that he will not enforce the law. The only way that the Mayor's refusal to
comply with the law can be read to be consistent with the Charter would be to read section 422
as granting to the Mayor "not only the power to execute the laws but also to make [or unmake]
some." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 633
(1952). Just as the Court in Youngstown found that fhe President had exceeded his powers under the Constitution, this Court
must find that the Mayor has exceeded his authority under the District Charter.

B. The Council is Entitled to Injunctive
Relief Requiring the Mayor to Execute All Validly Enacted Laws, or to
Refrain from Refusing to Enforce Such Laws.

The case cited by the Mayor as barring injunctive relief
for the Council has no application to an action in Superior Court.
(Mayor Memorandum at 15). Citizens Association of' Georgetown, Inc. v.
Washington, 291 A.2d 699 (D.C. 1972), held that the D.C. Court of
Appeals could not issue a writ of mandamus without an independent basis
for its exercise of jurisdiction, because the writ could only be issued
in aid of the court's jurisdiction. Id. at 705. The Superior Court is
"a court of general jurisdiction with the power to adjudicate any
civil action at law or in equity involving local law." Martin v.
District of Columbia Courts, 753 A.2d 987, 990 (D.C. 2000); Powell v.
Washington Land Co., Inc., 684 A.2d 769, 770 (D.C. 1996) (quoting
Andrade v. Jackson, 401 A.2d 990, 992 (D.C.1979)); see also District of
Columbia v. Group Ins. Admin., 633 A.2d 2, 13 (D.C. 1993). It is
squarely within the power of this Court to hear declaratory judgment
actions and to issue all writs necessary in aid of its jurisdiction.2

While it is true that the remedy of mandamus, or a
mandatory injunction is a drastic one, to be invoked only in
extraordinary circumstances, this case presents such circumstances
because all of the necessary elements are met:3 The plaintiff has a
clear right to relief; the defendant has a clear duty to act; and there is no other
adequate remedy available to plaintiff. Northern States Power Co. v.
U.S. Dep't of Energy, 327 U.S. App. D.C. 20, 128 F.3d 754. 758 (D.C.
Cir. 1997) (quoting Council of and, for the Blind of Delaware Cty.
Valley, Inc. v. Rcgan. 228 U.S. App. D.C. 295, 709 F.2d 1521, 1533 (D.C.
Cir. 1983) (en bane)). Affirmative injunctive relief may be granted
regardless of whether the case would be proper for issuance of writ of
mandamus and regardless of whether the particular defendant is the
proper person or entity to be served with such writ, because the writ of
mandamus has been abolished by Rule 81. Person v. St. Louis S. F. R.
Co., 428 F. Supp. 1148, 1150 (W.D. Okla. 1976).

Declaratory relief is appropriate when it would (1)
clarify and settle legal relations at issue, and (2) terminate and
afford relief from uncertainty, insecurity, and controversy giving rise
to a proceeding. Maryland Cas. Co. v. Rosen, 445 F.2d 1012, 1014 (2d
Cir. 1971); Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998,
1001 (2d Cir. 1969). Additionally, it is appropriate where a substantial
public interest is at issue. Public Affairs Associates. Inc. v.
Rickover, 369 U.S. 111, 112 (1961); Eccles v. Peoples Bank, 333 U.S.
426, 431 (1948). A request for declaratory relief may be considered
independently of whether other forms of relief are appropriate, and the
court may grant declaratory relief even though it chooses not to issue
an injunction or mandamus. Powell v McCormack, 395 U.S. 486, 517 (1969).

The Council does not accept the Mayor's position that it
must proceed with the uncertain remedy of quo warranto against a third
party. Mayor Memorandum at 16 - 19. However, because the issue has been raised, and may bear on the
availability of the relief sought. it is
necessary to address that contention. Prior to issuance of an
extraordinary writ, it is necessary to demonstrate that there is no
plain, speedy, complete, and other adequate remedy available.4
A remedy
is inadequate where it is not a remedy against the defendant at all, but
a remedy against a third party. State ex rel. Campbell v. Slavik, 14
N.W.2d 186, 189 (Neb. 1944)(Pending appeals no substitute for mandamus).
In an action against the Mayor for violating the Home Rule Act, an
action for quo warranto is not appropriate.

The D.C. Circuit has held that equity will not be barred
from "issuing an injunction to restrain invalidly appointed
officers if the alternative remedy of quo warranto is inadequate."
Andrade v. Lauer, 234 U.S. App. D.C. 384, 729 F.2d 1475,
1498 (1984); citing Columbian Cat Fanciers, Inc. v. Koehne, 68 U.S. App.
D.C. 257, 96 F.2d 529, 532 (1938). That court cited the cumbersome,
extremely difficult, and uncertain nature of quo warranto proceedings. A
plaintiff is not required to seek an alternative remedy that is slow,
cumbersome, burdensome, ineffective. or that provides incomplete relief.
Moreover, the remedy of quo warranto does not address the Council's
complaint. The Council's complaint is that the Mayor has violated his
duty under section 422 of the Home Rule Act.

In Columbian Cat Fanciers, Inc. v. Koehne, supra, 96 F.2d
at 532, the court stated that "the jurisdiction of equity attaches
unless the legal remedy, both in respect to the final relief and the mode of obtaining it, is as efficient as the remedy
which equity would confer in the same circumstances." See also,
Kilbourn v. Sunderland, 130 U.S. 505, 514 (1889): Boyce's Executors v.
Grundy, 3 Pet. 210, 215, 7 L.Ed. 655 (1830); Spignul v. Blundon, 53 App.
D.C. 29. 30. 287 F. 1006 (1923). "Adequate remedy at law"
means a remedy vested in the complainant.
to which he may at all times resort at his own option, fully and
freely, without let or hindrance." Beach v. Beach Hotel Corp., 117
Conn. 445, 453, 168 A. 785, 788 (1933); Wheeler v. Bedford. 54 Conn.
244, 249, 7 A. 22, 24 (1886). As was said by the court in Toledo
Traction. Light & Power Company v. Smith, 205 F. 643, 662 (D.C.N.D.
Ohio 1913): "It would seem to us that the remedy by quo warranto is
therefore not quite complete, where the party interested must appeal to
the discretion of some other person or body."

Moreover Andrade v. Lacer, supra, 729 F.2d at 1498,
submitted by the Mayor at the status hearing, on June 16, 2003, is a
later case than United States ex rel. Noel v. Carmody. 80 U.S. App. D.C.
58, 148 F.2d 684 (1945), a case cited by the Mayor as the leading local
court decision construing the quo warranto statute for removal of
District officers. Carmody involved an attempt to remove "the
President of the Bar Association of the District of Columbia." Id.
at 58. The later case of Andrade, involved the attempted removal of
federal government employees, and supports the position that quo
warranto is not a complete and adequate remedy that would prevent the
employees from filing a constitutional claim. That decision inferred
that a court should avoid an interpretation that would likely make it
impossible for a party to bring substantial constitutional claim. Id. at
1498. As noted in prior pleadings, the Supreme Court's decision in In re
Delgado, 140 U.S. 586 (1891) specifically rejected a probate clerk's
argument that a quo warranto proceeding and not a mandamus proceeding
was proper because the proceeding was not brought to try the title to office but
to compel the probate clerk to properly discharge his duties.

II. THE COUNCIL'S ESTABLISHMENT OF NEW QUALIFICATIONS FOR THE OFFICE OF THE INSPECTOR GENERAL DOES NOT VIOLATE SEPARATION OF
POWERS BECAUSE THEY WERE ENACTED FOR A LEGITIMATE
PURPOSE.

A. The Mayor's argument that the
facially valid law is invalid because it has the incidental effect of
the incumbent Inspector General having to vacate office is unsupported
by law.

The Mayor continues to erroneously assert that a facially
valid law that has the incidental effect of the incumbent having to
vacate office is a per se violation of separation of powers. This
manifestly is nof the law.

The relevant case law, including cases cited by the
Mayor, firmly establishes that otherwise valid legislation that has the
incidental effect of removing the incumbent does not encroach upon the
executive removal power in violation of separation of powers. State ex
rel. Hammond v. Maxfield, 132 P.2d 660 (Ut. 1943); Lama v. Wagner, 183
N.E.2d 670 (N.Y. 1962), appeal dismissed 371 U.S. 74, cert. den. 371
U.S. 901 (1962). Therefore, contrary to the Mayor's argument, the fact
that the incumbent apparently will have to vacate the position because
he no longer possesses the required qualifications is not a per se
violation of separation of powers.

As explained by Plaintiffs in their initial Memorandum,
this is the critical difference between legislation that results in an
incumbent officer having to "vacate" an office and legislation
that "removes" an incumbent. If the legislation has a
legitimate purpose, there is no violation of separation of powers because the
"removal" of the officer is "incidental" to that
legitimate purpose. Conceptually, the incumbent is not being
"removed" by the legislature in such instances; rather, the
legislation has the incidental effect of the incumbent having, to
"vacate" the position.5

As support for his claim that the Council has
impermissibly encroached upon the executive's removal power, the Mayor
cites to cases setting forth general separation of powers precepts,
including the principle that a legislature cannot exercise its
legislative authority for the purpose of removing an incumbent office
holder. Mayor Memorandum at 7-10. The Council does not disagree with any
of these general principles. It agrees that the Council's establishment
of qualifications for the position of Inspector General cannot be a
"subterfuge" or a "device" for removing the
incumbent Inspector General, that it must have been done for a
legitimate legislafive purpose.

Where the Council and the Mayor differ is on whether the
Council's legislative act - establishing qualifications for the position
of Inspector General - was a pretext for removing the incumbent
Inspector General from office.

The Council knows that the law was enacted for the
legitimate legislative purpose of establishing new qualifications for
the position of Inspector General. As fully explained in Plaintiffs'
Memorandum, the qualifications, on their face, are reasonable and
substantial and apply to both present and future inspector generals
(i.e., directed at the position, not at any person).

Conversely, the Mayor simply concludes the enactment of
the qualifications is a pretext for removing the incumbent from office.
He bases this conclusion solely upon the fact that the law will result
in the incumbent Inspector General having to vacate the office:

(I)t is undisputed that the incumbent does not - and
cannot - satisfy the newly proposed qualifications in the subject
legislation. See attached Affidavit of Charles C. Maddox, ¶ 12. This
factual predicate makes it clear that the Council acted beyond its
authority and specifically targeted the incumbent for removal by its
legislation.

Mayor Memorandum at 6.

Had the Council's IG Act been made prospective only as to
the new and more stringent qualifications for the position, it might be
open to the plaintiffs to argue that its purpose was not to remove the
present incumbent. But the attempt to apply them specifically to the
incumbent reveals the Council's intention for what it is - a naked
attempt by the legislature to exercise power of removal.

Mayor Memorandum at 11.

The Mayor argues that the Council's establishment of new
qualifications for the Inspector General position is a prohibited
"removal" simply because it has the effect of forcing the
incumbent to vacate the office - even though the qualifications
themselves may be properly imposed upon future Inspector Generals. In
other words, the Mayor argues that the purpose of the legislation is to
remove the incumbent Inspector General simply because the new
qualifications - although otherwise valid - have the effect of the
incumbent having to vacate the office. Thus, the Mayor is arguing that
the fact the Inspector General will have to vacate the office means per
se that the purpose of the legislation is to remove him, which, in turn,
means that the establishment of the qualifications per se violates
separation of powers. This, of course, is completely circular reasoning that has no support in
the relevant case law.6

The Mayor reaches this conclusion regarding the purpose
of the legislation without ever examining the legitimacy of the
qualifications themselves. In his 20-page memo. he devotes only two
fleeting references to the legitimacy of the qualifications, as opposed
to the validity of their being imposed upon the incumbent. In the
above-quoted passage from page I 1 of Mayor's Memorandum, he concedes
that the qualifications may pass muster if imposed prospectively (i.e.,
not upon the incumbent, but upon his successors in office).
Contrastingly, in a footnote. the Mayor states that the
"qualification standards in the IG Act are designed to remove Mr.
Maddox and bear little relationship to a perceived need to improve the
qualifications and performance of future IGs." Mayor Memorandum at
13, n.6.

Tellingly, the Mayor wants the Court to focus on
everything but the qualifications themselves. Rather than grounding his
assertions in the law and analyzing the statute on its face, the Mayor
has attempted to bury this Court under a flurry of irrelevant
testimonials to the incumbent Inspector General. This is not a
referendum on whether the incumbent Inspector General has performed
adequately during his tenure. Nor is it a referendum on whether his
present qualifications should be deemed sufficient for him to continue
to hold the position. Both are irrelevant to resolution of the issue
before this Court. Plaintiffs move that they be stricken from the record.

Instead of examining the legitimacy of the
qualifications, the Mayor argues that the fact the Council chose to
impose them upon the incumbent means per se that the incumbent has been
targeted for removal in violation of separation of powers, and the
purpose of the legislation was to effectuate the incumbent's removal.
The Mayor argues that the imposition of the qualifications on an
emergency basis betrays the true intent of the Council, which, of course.
is to remove the incumbent Inspector General. Mayor Memorandum at
11-12. He then points out that "the Council could have made the new
qualifications effective for the next term instead of applying them to
the incumbent." Mayor Memorandum at 12.

As previously stated by the Council in its Memorandum,
the whole timing issue is a red herring. The truth is, the Mayor would
challenge this law as constituting a violation of separation of powers
if it were imposed upon the incumbent Inspector at amy time during his
term. The Mayor's position is that any change in qualifications during
an incumbent's term that results in the incumbent having to vacate
office is an unconstitutional removal of that officer. Mayor Memorandum
at 19 ("There can be no vacancy and the incumbent IG is entitled to
continue to hold his office until the expiration of his term, unless
removed by the Mayor. .."). This means that the Council could never
impose new qualifications upon an incumbent if the imposition of the
otherwise valid qualifications would result in the incumbent having to
vacate office.

The Mayor also argues that the fact that the legislation
would not pen-nit the incumbent to serve in a hold-over capacity or on
an acting basis constitutes further evidence of the Council's intent to
target the incumbent. The Mayor complains that serving in a hold-over capacity "is the way in which appointed
administrative officials whose terms have expired are commonly
treated." Mayor Memorandum at 13. Once again, however, the Mayor
has misstated the applicable law. If the incumbent Inspector General no
longer meets the qualifications, he is no longer eligible to hold the
office and is required to vacate it. See Miller v. Mendez. 840 So. 2d
1243, 1247 (Fla. 2001) ("If candidate is elected and does not meet
residency requirement by the date of assuming office, the office is
deemed vacanf and the Governor may appoint someone to fill the
vacancy."); Donohue v. Conklin, 192 Misc. 2d 664, 669, 747 N.Y.S 2d
893, 897 (2002) (Appointments of commissioners who are not residents are
"hereby invalidated and declared null and void."); 63C Am.
Jur. 2d § 48 ("To hold public office, one must be eligible and
possess the qualifications prescribed by law."). That means the
incumbent can no longer continue to serve in a hold-over capacity. Under
such circumstances, his term has not "expired." In this
respect, the act simply reiterates what is already the law.

In addition, the Mayor argues that the "Council's intent to remove Mr. Maddox is further revealed by the fact that the
Council added two additional qualification criteria that Mr. Maddox can
meet, but the Council did not apply these two new criteria to the
incumbent as of June 1, 2003." Mayor Memorandum at 13. As noted by
the Mayor, these two qualifications (1) require the Inspector General to
have a minimum of seven years of supervisory and management experience
and (2) add experience in "law" as a practice area which
qualifies a person to hold the office. Prior to the amendments at issue
here, the relevant practice areas were limited to experience in
"accounting, auditing, financial management analysis, public
administration, or investigations."

These two criteria were effective on April 29, 2003, the
day the emergency act became effective following the Council's 12-1 override of the
Mayor's veto. Therefore, they applied to the incumbent Inspector General
as of that date.

More importantly, the inclusion of these two
qualifications provides evidence that the purpose of the legislation was
to establish specific, objective qualifications for all inspector
generals, not fo remove the incumbent Inspector General. The inescapable
conclusion is that these are criteria that the Council, in its
collective judgment, believes are necessary to enhance the prospects
that the office will capably perform its legislatively mandated
functions.

By citing only general separation of powers principles as
the sole support for his conclusion that the Council has improperly
encroached upon his removal power, the Mayor is attempting to create the
illusion that this is a clear-cut case of a violation of separation of
powers, one that does not require any meaningful analysis. It is not
surprising that the Mayor has chosen not to provide any analysis beyond
a superficial reading of the cases because the cases he cites do not
support his conclusion that this is a per se violation.7

C. The cases cited by the Mayor do not
support his proposition that legislation having incidental effect of
incumbent having to vacate office is an encroachment on the executive's
power of removal.

The three Supreme Court cases cited by the Mayor are
inapposite because all dealt with statutes that expressly limited the President's removal
power. Morrison v. Olson, 487 U.S. 654 (1988) (Act restricted Attorney
General's power to remove independent counsel to "for cause"
only); Myers v. United States, 272 U.S. 52 (1926) (President could
remove postmaster only with approval of Senate); Bowsher v. Synar, 478
U.S. 714 (1986)(Comptroller General could be removed only by joint
resolution of Congress or by impeachment). In the latter two cases, the
Supreme Court held that limiting the removal power violated separation
of powers because the offices in question performed executive functions.
In Morrison, the Supreme Court held that the limitation on the removal
power was not a violation of separation of powers because the position
had a high degree of independence from the executive branch. None of
these cases required the Court to determine whether the removal of the
officer was for the purpose of the legislation or simply an incidental
effect of it.

The state cases cited by the Mayor do not support his
proposition that legislation which causes a position of the incumbent to
become vacant is an exercise of the power of removal. Ahearn v. Bailey.
451 P.2d 30 (Ariz. 1969); State ex. rel. Hammond v. Maxfield, supra:
Kelley, v. Clark, 193 A. 634 (Pa. 1937). In fact, they demonstrate that
the Council acted within its proper legislative authority.

These cases examine whether a legislature abolishing an
office and creating another in its place has impermissibly encroached
upon the executive's removal power. In assessing whether the underlying
legislative purpose is legitimate, the courts have examined the statute
on its face to determine whether the legislation has effected a
substantial change. If a legislature abolishes an office and creates a
new office in its place, the test is whether the newly created office is
substantially different than the one it replaces. If it is substantially
different, the legislature has acted properly within its authority and there has been no
impermissible encroachment upon the executive's removal power. If,
however, the newly created office is not substantially different than
that which it replaces, the legislature's motives become suspect and the
legislative act is presumed to be a pretext for an impermissible removal
of an office holder.

In State ex rel. Hammond v. Maxfield, supra, the
legislature created a new State Engineering Commission, terminated the
positions of the members of the existing State Road Commission, and
provided that the members of the new State Engineering Commission would
be ex officio members of the State Road Commission. The members of the
new State Engineering Commission had duties beyond their service on the
State Road Commission. including supervision of the State Engineer,
serving as the State Aeronautics Commission, and receiving reports from
the State Engineer. The court, looking at the law on its face, found a
substantial change had been effected by the legislature and,
notwithstanding the direct termination of the terms of the members of
the State Road Commission by the legislature, upheld it as a bona fide
exercise of legislative power.

The court stated, as a first principle, that "an
office created by the legislature may be abolished by it. Appointment of
an officer gives rise to no contract that he may retain the office for
the term appointed. No person has a vested right to an office." Id.
at 662. "[W]here the power to create or abolish is rightfully used
for legislative purposes, the fact that it incidentally results in the
loss of office can make no difference." Id. at 665. The test set
forth by the court is whether fhe change was "substantial in
quality or volume." Id. "If it abolishes one office and puts
in its place another by the same or a different name but with
substantially the same duties, it will be considered a device to unseat
the incumbents. [citations omitted]." Id. at 663. On the other hand, "[i]f the newly created office has
substantially new, different or additional functions. duties or powers,
so that it may be said in fact to create an office different from the
one abolished, even though it embraces all or some of the duties of the
old office it will be considered as an abolition of one and the creation
of a new or different one. The same is true if one office is abolished
and its duties, for reasons of economy are given town existing office or
officer. [citations omitted]." Id. at 663-664.

The court looked at the face of the law to make its
determination:

It must be assumed that the reorganization attempted by
the legislature is bona fide if enough appears on the statute books from
which it can be inferred that the duties of the State Engineering
Commission are substantially different or more comprehensive than those
of the State Road Commission ... We cannot say on the face of the act
that the consolidation and reorganization of all these duties under the
State Engineering Commission does not constitute it as a substantially
new office and that the reorganization was not bona fide.

Id. at 666.

In Ahearn v. Bailey, supra, which relied in part on State
ex rel. Hammond v. Maxfield, supra, the legislature shortened the terms of the members
of the Industrial Commission and increased the number of members that
could be appointed by the governor. The court stated thaf the
legislature has the right to abolish offices and that an office holder
cannot complain if the valid exercise of that right results in the loss
of office. It stated that the action will be a device to unseat the
incumbent "if a Legislature abolishes an office and puts in its
place another by the same or different name but with substantially the
same duties..." Id. at 33. In this case, the legislature's action
was not substantial because it left the offices of the members intact.
It did not abolish an office without the creation of a substitute,
abolish two or more offices with substantially the same duties or
different duties and combine the duties under one office by a different name or even the same name for reasons of
economy or genuine reorganization, or create a new office with
substantially new, different or additional functions, duties or powers
even though it also embraces all of the duties of the old office. A
substantial change will fit naturally into the scheme of reorganization.
Id. at 35. "The enlargement of the Commission to five (5) members
could have been accomplished without removing the three (3) existing
members, thereby encroaching on the Executive Department." Id. at
36.

In Commonwealth ex rel. Kelley v. Clark, 193 A. 634 (Pa.
1937), also analyzed in Ahearn v. Bailey, supra, the Civil Service Commission of
the City of Philadelphia consisted of three commissioners elected by the
City Council for a term of four years. The General Assembly abolished
the civil service commission and re-established it with five members,
providing that the Mayor would appoint two commissioners and the City
Controller appoint two commissioners and the four would elect a fifth
commissioner. It was also provided that the act would become immediately
effective. Again, under the facts of this case, the court acknowledges
the well established principle that an office "exists by the
will of the legislature only, and may be abolished at any time, and the incumbent has no standing
to complain [citation omitted]." Id. at 637. The defect in the legislation was that it did not
abolish the commission because the old commission was simply continued in a different form,
i.e., there was no substantial change made by the legislation.
"There was no intention to abolish the office; language in the Act
of May 19, 1937, supra, that it is abolished is mere subterfuge. The
intention to the contrary is too obvious. The best that can be said is that the legislature
attempted to abolish and continue the office at one and the same time, an impossible thing." Id. at 636.

Pennsylvania law in this matter is further informed by
Carey v. Altoona, 16 A.2d 1 (Pa. 1940), a subsequent case. In Carey, a police captain was
demoted as a result of a legislative reorganization which eliminated the
position of captain. The nature of the inquiry was limited to the
substantiality of the ordinance on its face.

[W]here the office itself is abolished by legislative act
or ordinance a court will not pry into the motives of the legislators
who voted for its passage: Leap-1. v. Philadelphia, 314 Pa. 458, 470,
172 A. 459, 464. "Good faith," in such a case, enters only
into the determination of the question whether the office has really
been abolished; whatever he the language of the enactment purporting to
effect the abolition, if the office is substantially recreated, though
under a different name, with a new appointee performing the same duties
as the prior incumbent, the court will invalidate such legislation as
being nothing more than a pretense. But where, as here, the position and
its emoluments are wholly and unquestionably abolished, and no new rank
in the police force, either in name or substance, is created similar to
that which is being discontinued, it is not for a court to say that the
motive underlying the enactment of the ordinance may have been personal
or political rather than a disinterested desire to further the public
welfare. Id. at 4-5.

The fundamental teaching of these cases, which form the
crux of Mayor's position, is that a legislative act which abolishes an
office does not impermissibly encroach upon the executive removal power
if there is a substantial change in the existing scheme indicative of a
legitimate legislative purpose. A substantial change may abolish an
office without the creation of a substitute, abolish two or more offices
with substantially the same duties or different duties and combines the
duties under one office by a different name or even the same name for
the reasons of economy or genuine reorganization, create a new office
with substantially new, different or additional functions, duties or
powers even though it also embraces all of the duties of the old office,
or be necessary to accomplish the purpose of the scheme. However, the
exercise of the power will be deemed to be a subterfuge and the exercise
of the power of removal only if there is no substantial change, i.e.,
the new office is substantially the same as the office abolished. We
have not found any authority holding that a legislature has exercised a
power of removal where the newly created office has substantially new,
different, or additional functions. duties or powers. See, e.g., State
ex rel. Dwyer v. Mayor. 221 P. 524 (Mt. 1923); O'Neill v. Williams, 199
P. 870 (Cal. App. 1921) (cases where demotion of incumbent police
officer(s) upheld because of abolishment of position).

The test for determining the validity of the
qualifications established by the Council - that they be reasonable and
substantial - is consistent with the principles set forth in these cases
for examining the legitimacy of an abolition of an office. In both
instances, the legislature is acting within its legislative authority if
it is pursuing a legitimate legislative purpose. Here, if the
qualifications, on their face, are reasonable and substantial, the
Council's act establishing the qualifications would not constitute an
impermissible exercise of the Mayor's removal power. Sec State ex. rel.
Buttz v. Marion Circuit Court, 72 N.E.2d 225, 230 (Ind. 1947); Lee v.
Clark, 77 S.E.2d 485 (S.C. 1953).

This test is certainly not difficult to apply. See, e.g.,
Duggins v. North Carolina State Board of Certified Public Accountant
Examiners, 240 S.E.2d 406 (N.C. 1978) (Qualification of two years of
experience under certified public accountant in public practice for
issuance of certified public accountant's license will not be set aside
if it bears a reasonable relationship to purpose of the statute.). A
change that increases an experience requirement from five years of
practice to five years and three months of practice would not be
substantial. By contrast, the prescription of a minimum experience
requirement of seven years where there was none previously, as is the
case here, would certainly be substantial. The Mayor effectively
concedes that the change in degree of the qualifications is substantial
by characterizing them as "more stringent qualifications for the
position" and as "different from and more onerous" than
the qualifications previously in place. Mayor Memorandum at
11.

As previously stated, the Mayor has not argued that the
qualifications themselves are not reasonable, only that it is
unreasonable to apply them to the incumbent Inspector General. Nor has
the Mayor suggested that the qualifications will only be applied to the
incumbent, not to future inspector generals. The new qualifications on
their face are reasonable and their applicability is not confined to the
incumbent Inspector General. The effect of this legislation goes far
beyond the incumbent. Under these circumstances, the Council cannot be
said to have acted for anything but a legitimate legislative purpose.

A legislature encroaches upon the executive branch in violation of
separation of powers
only when the encroachment disturbs core executive
functions. As the Supreme Court has emphasized, it is the degree and severity of the
intrusion that matters:

(I)n determining whether the Act disrupts the proper
balance between the coordinate branches, the proper inquiry focuses on
the extent to which it prevents the Executive Branch from accomplishing
its constitutionally assigned functions. Only where the potential for
disruption is present must we then determine whether that impact is
justified by an overriding need to promote objectives within the
constitutional authority of Congress.

The degree of intrusion upon the executive's removal
power that is permissible depends upon the character of the office being
affected. Humphrey 's Executor v. United States. 295 U.S. 602, 631
(1935) ("Whether the power of the President to remove an officer
shall prevail over the authority of Congress to condition the power by fixing a
definite term and precluding a removal except for cause, will depend
upon the character of the office."). The "real question is
whether the removal restrictions are of such a nature that they impede
the President's ability to perform his constitutional duty, and the
functions of the officials in question must be analyzed in that
light." Morrison v. Olson, 487 U.S. 654, 691 (1988).

The Supreme Court has held that a legislature can
restrict the executive's power to remove officials who do not perform
purely executive functions and whose offices are legislatively designed
to have a significant degree of independence from the executive.
Morrison v. Olson, 487 U.S. 654 (1988); Wiener v. United States, 357
U.S. 349 (1958); Humphrey's Executor v. United States, 295 U.S. 602
(1935).

The Mayor asserts that the statute establishing the
Office of the Inspector General somehow serves to "ratify the
separation of powers principles" inherent in the Home Rule Act
because it places the office within the executive branch and provides no
role for the Council in the removal process. Mayor's Memorandum at
10-11.

The Mayor must have been looking at a different statute.
An examination of the statutory framework and legislative history
underscores that the Office of the Inspector General is legislatively
designed to be independent from the Mayor. The Inspector General is not
under the Mayor's control and does not make policy. He is to perform his
functions in an impartial manner, free of the Mayor's influence. D.C.
Official Code §2-302.08.

The statute, which the Mayor says was "carefully
crafted" by Congress, already places a huge restriction on the Mayor's removal power - the
Inspector General has a fixed term of six years and can only be removed
by the Mayor, for cause. D.C. Official Code § 2-302.08(a)(1)(A). This
kind of legislative restriction upon the executive's removal power is
justified only when the office does not perform purely executive
functions and has been legislatively designed to have a significant
degree of independence from the executive. Morrison v. Olson. 487 U.S.
654 (1988): Wiener v. United States, 357 U.S. 349 (1958); Humphrey's
Executor v. United States, 295 U.S. 602 (1935). Contrary to the Mayor's
assertions, the fact that the office is nominally housed within the
executive branch is of no consequence. See Morrison. 487 U.S. at 689, n.
27 (This "Court has never held that the Constitution prevents
Congress from imposing limitations on the President's power to remove
all executive officials simply because they wield `executive'
powers.") (emphasis in original).

The functions of the Inspector General are decidedly not
purely executive. There are numerous indicia of independence to be found
in the statutory language and the legislative history. The primary
mission of the Inspector General is to ferret out corruption within the
District of Columbia government. "The Inspector General shall . . .
conduct independent fiscal and management audits of District government
operations." D.C. Official Code § 2302.08(a)(3)(A) (emphasis
added). The statute requires that the Inspector General
"(i)ndependently conduct audits, inspections, assignments, and
investigations as the Mayor shall request, and any other audits,
inspections and investigations that are necessary or desirable in the
Inspector General 's judgment." D.C. Official Code §
2-302.08(a)(3)(D) (emphasis added).

The Inspector General has to be free from political
influence to be able to follow the evidence wherever it may lead, even
if it leads to the doorstep of the Mayor. This is why the statute requires that the Inspector General be appointed
"without regard to party affiliation." D.C. Official Code §
2-302.08(a)(1)(D).8 The Inspector General is to be non-partisan.

This is not an officer who is carrying out the Mayor's
will. He cannot be said to report to the Mayor any more than he reports
to the Council. Tellingly, the statute requires the Inspector General to
report findings of criminal wrongdoing to the Mayor only if appropriate.
D.C. Official Code § 2-302.08(a)(3)(F)(ii).9

Congress stated that it increased the term of the
Inspector General from 4 years to 6 years because it did not want the
term of the Inspector General to coincide with that of any Mayor. It
shielded the Inspector General's budget from revision by either the
Mayor or the Council because it did not want either to be able to exert
political control over the Inspector General's investigations through
the power of the purse. The statute prohibits either the Mayor or the
Council from making "revisions" to the Inspector General's
proposed budget. D.C. Official Code § 2-302.08(a)(2)(A).

In Humphrey's Executor, the Supreme Court found similar
evidence of legislative intent as mandating its conclusion that Congress
could restrict the President's power to remove members of the Federal
Trade Commission. The Supreme Court stated that the language of the act,
the general purposes of the legislation, and the legislative history
demonstrated the intent of Congress to create "a body which shall
be independent of executive authority, except in its selection, and free to exercise its judgment without
leave or hindrance of any other official or any department of the
government." Humphrey's Executor, 295 U.S. at 625-626.

In terms of its independence from the executive, the
Office of the Inspector General is analogous to the Federal Trade
Commission, which the Supreme Court in Humphrey's Executor described as
being an office that "cannot in any sense be characterized as an
arm or an eye of the executive. Its duties are performed without
executive leave and, in the contemplation of the statute, must be free
from executive control." Humphrey's Executor, 295 U.S. at 628.

In Morrison, the Supreme Court determined that an act
restricting the President's ability to remove an independent counsel
appointed by a specially created division of the federal courts did not
violate separation of powers because of the demonstrated intent of
Congress to provide the position with a high degree of independence:

Here, as with the provision of the Act conferring the
appointment authority of the independent counsel on the special court,
the congressional determination to limit the removal power of the
Attorney General was essential, in view of Congress, to establish the
necessary independence of the office. We do not think this limitation as
it presently stands is sufficiently deprives the President of control
over the independent counsel to interfere impermissibly with his
constitutional obligation to ensure the faithful execution of the laws.

Morrison, 487 U.S. at 692-693.

Congress also placed additional restrictions on both the
Mayor's appointment and removal powers pertaining to the Office of the
Inspector General. During a control year, the Mayor can only appoint or
remove the Inspector General with the approval of the Control Board, but
the Control Board can remove the Inspector General without the Mayor's
approval. D.C. Official Code § 2-302.08(a)(1)(A) and (B). During a
control year, the Council has no role to play in the appointment of the
Inspector General. Because the incumbent Inspector General was appointed during a control year, in 1999, the Mayor was
able to appoint him without the advise and consent of the Council. It
was the presence of this very check on executive power - that the
President's appointment of Cabinet-level officials were constitutionally
required to he approved by the Senate - that led the First Congress to
construe the Constitution as implicitly making the President's removal
power incident to his appointment power. Myers v. United States. 272
U.S. 52 (1926).

The Mayor attempts to paint the case before the court as
a clear-cut picture of a legislature encroaching upon the executive's
removal power in violation of separation of powers. It is not. As the
Supreme Court has noted, analysis of allegations of encroachment upon
the executive's removal power can take many twists and turns:

The assumption was short-lived that the Myers case
recognized the President's inherent constitutional power to remove
officials, no matter what the relation of the executive to the discharge
of their duties and no matter what restrictions Congress may have
imposed regarding the nature of their tenure. The versatility of
circumstances often mocks a natural desire for definitiveness.

Weiner, 357 U.S. at 352.

The already complex separation of powers analysis is
further complicated by the unique governmental situation that exists in
the District of Columbia. For the Mayor to state that a statute
"carefully crafted" by Congress ratifies separation of powers
principles inherent in the "familiar tripartite structure" is
Kafkaesque. The constitutional power of the Congress to sit as a super
legislature atop the District's governmental structure cannot be neatly
reconciled with any conceptualization of a familiar tripartite system.
One need look no further than the statute in question to see the power
and influence Congress wields when it comes to the District.

The state of the law on when a legislature can be said to
impermissibly encroach upon the executive's removal power is in flux.
What is settled is that the character of the office to which the removal
power pertains is the focus of the court's analysis. Offices that do not
perform purely executive functions and that have been legislatively
designed to be independent from the executive do not raise the same
separation of powers concerns as do offices that. out of necessity. need
to be subordinate to the Mayor.

The Supreme Court has found these distinctions in the
nature of the office, first made in Humphrey 's Executor, to be
critical:

And what is the essence of the decision in Humphrey's
case? It drew a sharp line of cleavage between officials who were part
of the Executive establishment and were thus removable by virtue of the
President's constitutional powers, and those who are members of a body
"to exercise its judgment without the leave or hindrance of any
other official or any department of the government," 295 U.S.. at
625-626, as to whom a power of removal only if Congress may fairly be
said to have conferred it. This sharp distinction derives from the
difference in functions between those who are part of the Executive
establishment and those whose tasks require absolute freedom

Weiner, 357 U.S. at 353.

Here, the Office of the Inspector General bears all the
indicia of an office legislatively designed to be independent from the
Mayor. The Council has acted, within its prescribed constitutional
authority, to establish qualifications for the position of Inspector
General. The imposition of those qualifications apparently will have the
effect of the incumbent Inspector General having to vacate the office.

The Supreme Court has held that the President's power of
removal can be cypress/, limited by legislation if the affected office
is one that does not perform purely executive functions and is legislatively designed to be independent
from the President. Here, the Council is not lodging the removal power within the legislative
branch. The legislation in question only has the effect of the incumbent
having to vacate the office because he no longer possess the
qualifications the Council, in its collective judgment and in good
faith, believes are necessary for the office to perform its critical
functions.

The question then becomes, Does this effect intrude upon
the Mayor's core functions so as to disturb his ability to meet his
constitutionally assigned functions? See Nixon v. Administrator of
General Services, 433 U.S. 425, 442 (1977). At issue is the proper
balancing under these circumstances of these competing powers - the
Council's right to set qualifications for office and the Mayor's removal
power. Given the independent nature of this office, the Council believes
that the balance of the competing powers should weigh in favor of the
act. There is no intrusion here that will prevent the Mayor from meeting
his constitutional responsibilities.

IV. THE COUNCIL HAS AUTHORITY TO AMEND LEGISLATION WHICH
APPLIES EXCLUSIVELY IN AND FOR THE DISTRICT OF COLUMBIA, INCLUDING THE
CONGRESSIONAL AMENDMENTS TO THE INSPECTOR GENERAL
STATUTE.

The Council established the Office of the Inspector
General in section 208 of the District of Columbia Procurement Practices
Act of 1985, which provisions it amended in 1988 (the "Inspector
General statute"). (See Exhibit #2 attached to Council's Motion for
Summary Judgment). The Mayor makes no mention of its origins, but
discusses at length the 1995 amendments made by Congress to the law,
emphasizing the "congressionally-approved removal provision."
Mayor Memorandum at 6. Aside from the fact that the IG Qualification
Laws are not removal provisions, as Plaintiffs' Memorandum and
this Reply discuss, the tenor of the Mayor's argument is that
Congressionally enacted law, even amendatory, is inviolable and beyond
the province of the Council. Were this true, this would not simply be a
limitation on the powers of the Council; it would represent a serious
erosion of the District of Columbia's home rule powers. However,
contrary to the intimation of Defendant, under the Home Rule Act, the
Council has authority to amend legislation which applies exclusively in
and for the District of Columbia, whether such legislation is organic or
amendatory.

In the Home Rule Act, Congress delegated its exclusive
legislative authority under the Constitution10 to District of Columbia
residents subject to certain limitations and reservations. Under section
601 of the Home Rule Act,11 Congress reserved the right to legislate
on behalf of the District of Columbia. It provided, in pertinent part:

Notwithstanding any other provision of this Act, the
Congress of the United States reserves the right, at any time, to
exercise its constitutional authority as legislature for the District,
by enacting legislation for the District on any subject, whether within
or without the scope of legislative power granted to the Council by this
Act, including legislation to amend or repeal any law in force in the
District prior to or after enactment of this Act and any act passed by
the Council.12

Further, under section 602(a)(3) of the Home Rule Act,
Congress provided that, among the limitations of the legislative
authority granted under the Home Rule Act, the Council shall not "[e]nact any act, or enact any act to amend or
repeal any Act of Congress. which concerns the functions or property of
the United States or which is not restricted in its application
exclusively in or to the District ..."13

District of Columbia v. The Greater Washington Central
Labor Council, .AFL- CIO14 is the leading case construing the provisions of section
602(a)(3). The Court upheld the Council's repeal of Congressional
legislation governing District's workmens' compensation for private
sector employees and the enactment of a new scheme, holding that,
because the existing act was a local act and construed as state law, it
was not necessary for Congress to expressly authorize repeal and
transfer of the program (which at the time was being administered by the
United States Department of Labor solely with local funds) to local
authority.15

[T]he existing workmen's compensation program for private
employees, the Workmen's Compensation Act of 1928, is a congressionally
enacted local statute that deals exclusively with District of Columbia
matters. Consequently, no express congressional legislation is required
to effect the transfer.16

In interpreting section 602(a)(3), the court held
"that Congress intended in [section] 602(a)(3) to withhold from
local officials the authority to affect or to control decisions made by
federal officials in administering federal laws that are national in
scope as opposed to laws that relate solely to the District of Columbia."17 The Court
stated:

The legislative history further suggests that the
language was inserted to safeguard the operations of the federal
government on the national level:

The functions reserved to the federal level would be
those related to federal operations in the District and to property held
and used by the Federal Government for conduct of its administrative,
judicial, and legislative operations: and for the monuments pertaining
to the nation's past. The functions would include physical planning of
these federal areas. construction and maintenance of federal buildings,
and administration of federal park areas... [House Comm. on the District
of Columbia, 93d Cong., 2d Sess., D.C. Executive Branch Proposal for
Home Rule Organic Act 182 (Comm. Print 1973)]. [footnote omitted].

Thus, what Congress sought to protect by inserting this
limitation was the integrity of the federal domain as if related to
administration of federal legislation having national implications.
(Emphasis added).17

Thus, unless Congress has made an express reservation of
the right to legislate on a subject, fhe Council may pass any
legislation that deals exclusively with District of Columbia matters. In
the case of the present inquiry, it is clear thaf the Inspector General
statute relates solely to the District of Columbia. The Inspector
General is a local official (unlike the federal official who
administered the local scheme in District of Columbia v. The Greater
Washington Central Labor Council, AFL-CIO), uses local funds, and is
concerned only with local matters. Moreover, as opposed to the
legislation which the Court considered in District of Columbia v. The
Greater Washington Central Labor Council, AFL-CIO, whose genesis was a
Congressional act, the Inspector General statute is local law which was
amended by Congressional act. Accordingly, it is and continues to be
local law.

As held in District of Columbia v. The Greater Washington
Central Labor Council, AFL-CIO, the mere fact that Congress legislates on a purely
local matter does not, by itself, reserve the matter to exclusive
Congressional action. While Congress may reserve the exclusive right to
legislate on a particular subject and preclude local legislation, it has
not done so. In contrast, Congress has recently exercised this
prerogative.

The local Public Charter Schools Act of 199619 and the
federal District of Columbia School Reform Act of 199520 were adopted
almost simultaneously21 to authorize and regulate charter schools in the
District of Columbia. Although Congress was aware of the Council's
efforts to adopt legislation authorizing charter schools while it was
considering similar legislation for the District of Columbia, the
federal legislation did not expressly preempt the Council from
legislating with respect to charter schools. Apparently, Congress
intended for there to be two separate tracks by which to establish a
public charter school in the District of Columbia. However, because some
of the provisions included in the local charter act conflicted with
provisions in the federal act, Congress amended the federal act to
invalidate any local provisions that are inconsistent with the federal
law, as follows:

Waiver of application of duplicate and conflicting
provisions. -- Notwithstanding any other provision of law, and except as
otherwise provided in this title, no provision of any law regarding the
establishment, administration, or operation of public charter schools in
the District of Columbia shall apply with respect to a public charter
school or an eligible chartering authority to the extent that the provision
duplicates or is inconsistent with any provision of this title.22

As opposed to the express reservation of the right to
amend its local legislation in the case of charter schools, Congress
made no such reservation in the case of its amendments to the Inspector
General statute. Furthermore, it should be noted that, in the case of
local and federal charter school acts, the federal act was the last to
become effective. Thus, the subsequent Congressional reservation
demonstrates that a later Congressional enactment on a subject, without
a further express reservation of authority, does not constitute a
reservation prohibiting further local action.

It is clear that the Council is authorized under the Home
Rule Act to amend any of the provisions of the Inspector General
statute, including the qualification or removal provisions. As is its
prerogative in acting for the public interest and welfare in matters
applying exclusively in and for the District of Columbia, the Council
has amended the qualification provisions; the removal provisions of the
Inspector General statute have not been amended. The Mayor confuses the
operation of qualification provisions which cause a vacation of an
office with existing removal provisions.

The Mayor recounts at length the involvement of both
Congress and the now defunct District of Columbia Financial
Responsibility and Management Assistance Authority ("Control
Board") in the creation of the Office of the Inspector General and
the appointment and confirmation of the incumbent Inspector General.
Mayor's Memorandum at 4-5. He apparently attaches great significance to the fact that the
incumbent met the qualifications laid down by Congress and that the
Control Board, in approving him as Inspector General in 1999, determined
that he was "fully qualified" to fill the position, seemingly
suggesting that the Council should defer to the judgment of both.23

Despite the Mayor's suggestion to the contrary, as
explained above, neither the judgments of the Congress nor those of the
Control Board are binding upon the Council. Ironically, the Mayor
evinces the Home Rule Act as support for his implied suggestion that the
Council should defer to the judgments of those bodies.

The Mayor infers that passage of legislation on an
emergency basis was a scheme "effective June 1, 2003-although
expiring shortly afterwards... conveniently but purposely structured to
avoid the Congressional review process for acts passed by the Council,
as only temporary and permanent legislative acts need be submitted for a
period of Congressional review before they can become effective."
The Mayor's Memorandum at 13. As stated more fully in Plaintiffs'
Memorandum, the use of emergency legislative authority is a necessary
and appropriate legislative procedure, which Congress recognized by its
inclusion in the Home Rule Act. Like permanent legislation, the
authority for emergency legislation extends to all rightful subjects of
legislation except as expressly excepted under section 602 of the Home
Rule Act. That the Council acted to avoid Congressional review is simply not true.

The Council passed not only emergency legislation, but
temporary and permanent legislation as well. In fact, on April 30, prior
to the applicability of the qualification provisions, the temporary
legislation began its 30-day Congressional review period, which will be
followed by Congressional review of the permanent legislation. This was
not a scheme designed to go in effect and expire "shortly
afterwards." The passage of the laws on an emergency, temporary,
and permanent basis was designed to put a law into effect on the
effective date of an emergency (here. April 29, 2003) and apply
continuously thereafter to the present and future Inspector Generals. It
is in accord with Council practice to pass legislation which it
considers important in this manner. For instance, the annual Budget
Support Act, which implements the District of Columbia budget, is passed
in this manner with concurrence and encouragement of the Mayor. It is
customary for the Council to consider and pass, where appropriate,
emergency legislation which the Mayor himself has sent to the Council
for introduction; he would not suggest that these bills should not have
been considered because the resulting emergency acts will evade
Congressional review.

If the Council had truly sought to evade Congressional
review, it would have passed emergency legislation only, and not
temporary or permanent legislation. Under an efficacious scheme, the
qualifications would have applied immediately, the Mayor would have
nominated a new Inspector General within 30 days, and a new Inspector
General would have been installed thereafter. In that instance, there
would not have been any Congressional review, nor would the new
qualifications apply to subsequent Inspector Generals. Here, the Council
passed temporary and permanent legislation in accordance with customary
practice since the inception of the Home Rule Act, which will allow the
review provided for in the Home Rule Act. (See Exhibits #6 and 7,
attached to Council's Motion for Summary Judgment). "When, as
in this case, the Council `has acted to address concerns about public
safety (or welfare) by enacting legislation which Congress has had the
opportunity to review,' [citation omitted], the risk of an "erosion
of congressional prerogatives." [citation omitted], by the interim
enactment of emergency legislation is greatly reduced." Atchison y.
District of Columbia, 585 A.2d 150 (D.C. 1991).

The Mayor questions the judgment of the Council as to the
necessity for the immediate implementation of the legislation. In
Resolution 15-66 (effective March 18, 2001,50 DCR 2426). the Council
determined that emergency circumstances existed with respect to the need
to impose minimum qualifications for the position of Inspector General:
"Emergency legislation is required to enable the Office of the
Inspector General to raise its standards without subjecting the District
government and citizens to further inadequate service." (See
Exhibits #21, attached to Council's Motion for Summary Judgment).
Moreover, as stated in Plaintiffs' Memorandum, when reviewing the use of
emergency power by the Council, this Court has given a great degree of
deference to the Council's judgment and given it latitude to make policy
choices as to what constitutes an emergency.

This court will review emergency legislation to insure
that it complies with the Home Rule Act. [citation omitted]. .
.Congress' delegation to the Council of the required determination calls
for substantial deference to the Council's definition and determination
of `emergency circumstances,' a deference that is not likely to erode
congressional prerogatives because, very simply, emergency circumstances
by definition cannot last very long. Therefore, in looking at a
legislatively declared emergency, we seek only to assure ourselves that
the act is facially valid, i.e., consistent with Council legislative
authority in partnership with Congress.

Atchison v. District of Columbia, supra at 156. In
accordance with its legislative authority under the Home Rule Act, the
Council determined that the circumstances required "quick
legislative action for the preservation of the public peace, property,
health, safety or morals." Atchison v. District o/ Columbia, supra
at 156, quoting AFGE v. Barn, 459 A.2d 1045,1050 n.9 (D.C. 1983). This
judgment is entitled to deference from this court.

Federal Legislative Authority

§1-203.02. Legislative power

Except as provided in §§ 1-206.01 to 1-206.03, the
legislative power of the District shall extend to all rightful subjects
of legislation within the District consistent with the Constitution of
the United States and the provisions of this chapter subject to all the
restrictions and limitations imposed upon the states by the 10th section
of the 1st article of the Constitution of the United States.

§1-204.04. Powers of the Council

(a) Subject to the limitations specified in §§ 1-206.01
to 1-206.04, the legislative power granted to the District by this
chapter is vested in and shall be exercised by the Council in accordance
with this chapter. In addition, except as otherwise provided in this
chapter, all functions granted to or imposed upon, or vested in or
transferred to the District of Columbia Council, as established by
Reorganization Plan No. 3 of 1967, shall be carried out by the Council
in accordance with the provisions of this chapter.

(b) The Council shall have authority to create, abolish,
or organize any office, agency, department, or instrumentality of the
government of the District and to define the powers, duties, and
responsibilities of any such office, agency, department, or
instrumentality.

(c) The Council shall adopt and publish rules of
procedures which shall include provisions for adequate public
notification of intended actions of the Council.

(d) Every act shall be published and codified upon
becoming law as the Council may direct.

(e) An act passed by the Council shall be presented by
the Chairman of the Council to the Mayor, who shall, within 10 calendar
days (excluding Saturdays, Sundays, and holidays) after the act is
presented to him, either approve or disapprove such act. If the Mayor
shall approve such act, he shall indicate the same by affixing his
signature thereto, and such act shall become law subject to the
provisions of §1-206.02(c). If the Mayor shall disapprove such act, he
shall, within 10 calendar days (excluding Saturdays, Sundays, and
holidays) after it is presented to him, return such act to the Council
setting forth in writing his reasons for such disapproval. If any act so
passed shall not be returned to the Council by the Mayor within 10
calendar days after it shall have been presented to him, the Mayor shall
be deemed to have approved it, and such act shall become law subject to
the provisions of §1-206.02(c) unless the Council by a recess of 10
days or more prevents its return, in which case it shall not become law.
If, within 30 calendar days after an act has been timely returned by the
Mayor to the Council with his disapproval, two-thirds of the members of
the Council present and voting vote to reenact such act, the act so
reenacted shall become law subject to the provisions of §1-206.02(c).

(f) In the case of any budget act adopted by the Council
pursuant to § 1-204.46 and submitted to the Mayor in accordance with subsection (e) of this
section, the Mayor shall have power to disapprove any items or
provisions, or both, of such act and approve the remainder. In any case
in which the Mayor so disapproves of any item or provision, he shall
append to the act when he signs it a statement of the item or provision
which he disapproves, and shall, within such 10-day period. return a
copy of the act and statement with his objections to the Council. If.
within 30 calendar days after any such item or provision so disapproved
has been timely returned by the Mayor to the Council, two-thirds of the
members of the Council present and voting vote to reenact any such item
or provision, such item or provision so reenacted shall be transmitted
by the Chairman to the President of the United States. In any case in
which the Mayor fails to timely return any such item or provision so
disapproved to the Council, the Mayor shall be deemed to have approved
such item or provision not returned, and such item or provision not
returned shall be transmitted by the Chairman to the President of the
United States. In the case of any budget act for a fiscal year which is
a control year (as defined in §47-393(4)), this subsection shall apply
as if the reference in the second sentence to "ten-day period"
were a reference to "five-day period" and the reference in the
third sentence to "thirty calendar days" were a reference to
"5 calendar days."

§1-204.22. Powers and duties.

The executive power of the District shall be vested in
the Mayor who shall be the chief executive officer of the District
government. In addition, except as otherwise provided in this chapter,
all functions granted to or vested in the Commissioner of the District
of Columbia, as established under Reorganization Plan No. 3 of 1967,
shall be carried out by the Mayor in accordance with this chapter. The
Mayor shall be responsible for the proper execution of all laws relating
to the District, and for the proper administration of the affairs of the
District coming under his jurisdiction or control, including but not
limited to the following powers, duties, and functions:

(1) The Mayor may designate the officer or officers of
the executive department of the District who may, during periods of
disability or absence from the District of the Mayor. execute and
perform the powers and duties of the Mayor.

(2) The Mayor shall administer all laws relating to the
appointment, promotion, discipline. separation, and other conditions of
employment of personnel in the Office of the Mayor, personnel in
executive departments of the District, and members of boards,
commissions, and other agencies, who, under laws in effect on the date
immediately preceding January 2, 1975, were subject to appointment and
removal by the Commissioner of the District of Columbia. All actions
affecting such personnel and such members shall, until such time as
legislation is enacted by the Council superseding such laws and
establishing a permanent District government merit system, pursuant to
paragraph (3) of this section, continue to be subject to the provisions
of acts of Congress relating to the appointment, promotion, discipline,
separation, and other conditions of employment applicable to officers
and employees of the District government, to § 1-207.13, and where
applicable, to the provisions of the joint agreement between the
Commissioners and the Civil Service Commission authorized by Executive
Order No. 5491 of November 18, 1930, relating to the appointment of
District personnel. He shall appoint or assign persons to positions
formerly occupied, ex officio, by the Commissioner of the District of Columbia or by the
Assistant to the Commissioner and shall have power to remove such
persons from such positions. The officers and employees of each agency
with respect to which legislative power is delegated by this chapter and
which immediately prior to January 2, 1975, was not subject to the
administrative control of the Commissioner of the District, shall
continue to be appointed and removed in accordance with applicable laws
until such time as such laws may be superseded by legislation passed by
the Council establishing a permanent District government merit system
pursuant to paragraph (3) of this section.

(3) The Mayor shall administer the personnel functions of
the District covering employees of all District departments, boards,
commissions, offices and agencies, except as otherwise provided by this
chapter. Personnel legislation enacted by Congress prior to or after
January 2, 1975. including. without limitation, legislation relating to
appointments, promotions, discipline.. separations, pay, unemployment
compensation, health, disability and death benefits, leave, retirement,
insurance. and veterans' preference applicable to employees of the
District government as set forth in § 1207.14(c), shall continue to be
applicable until such time as the Council shall, pursuant to this
section, provide for coverage under a District government merit system.
The District government merit system shall be established by act of the
Council. The system may provide for continued participation in all or
part of the Federal Civil Service System and shall provide for persons
employed by the District government immediately preceding the effective
date of such system personnel benefits, including but not limited to
pay, tenure, leave, residence, retirement, health and life insurance,
and employee disability and death benefits, all at least equal to those
provided by legislation enacted by Congress, or regulation adopted
pursuant thereto, and applicable to such officers and employees
immediately prior to the effective date of the system established
pursuant to this chapter, except that nothing in this chapter shall
prohibit the District from separating an officer or employee subject to
such system in the implementation of a financial plan and budget for the
District government approved under subpart B of subchapter VII of
Chapter 3 of Title 47. and except that nothing in this section shall
prohibit the District from paying an employee overtime pay in accordance
with § 7 of the Fair Labor Standards Act of 1938 (29 U S.C.S. ; 20 ).
The District government merit system shall take effect not earlier than
1 year nor later than 5 years after January 2, 1975.

(4) The Mayor shall, through the heads of administrative
boards, offices, and agencies. supervise and direct the activities of
such boards, offices, and agencies.

(5) The Mayor may submit drafts of acts to the Council.

(6) The Mayor may delegate any of his functions (other
than the function of approving or disapproving acts passed by the
Council or the function of approving contracts between the District and
the federal government under § 1-207.31) to any officer, employee, or
agency of the executive office of the Mayor, or to any director of an
executive department who may. with the approval of the Mayor, make a
further delegation of all or a part of such functions to subordinates
under his jurisdiction. Nothing in the previous sentence may be
construed to permit the Mayor to delegate any functions assigned to the
Chief Financial Officer of the District of Columbia under subchapter 1-A of Chapter 3 of Title 47, without regard to whether
such functions are assigned to the Chief Financial Officer under such
section during a control year (as defined in § 47-393(4)) or during any
other year.

(7) The Mayor shall appoint a City Administrator, who
shall serve at the pleasure of the Mayor. The City Administrator shall
be the chief administrative officer of the Mayor. and he shall assist
the Mayor in carrying out his functions under this chapter, and shall
perform such other duties as may be assigned to him by the Mayor. The
City Administrator shall be paid at a rate established by the Mayor.

(8) The Mayor may propose to the executive or legislative
branch of the United States government legislation or other action
dealing with any subject, whether or not falling within the authority of
the District government, as defined in this chapter.

(9) The Mayor, as custodian thereof, shall use and
authenticate the corporate seal of the District in accordance with law.

(10) The Mayor shall have the right, under rules to be
adopted by the Council, to he heard by the Council or any of its
committees.

(11) The Mayor is authorized to issue and enforce
administrative orders, not inconsistent with this or any other Act of
the Congress or any act of the Council. as are necessary to carry out
his functions and duties.

(12) The Mayor may reorganize the offices, agencies, and
other entities within the executive branch of the government of the
District by submitting to the Council a detailed plan of such
reorganization. Such a reorganization plan shall be valid only if the
Council does not adopt, within 60 days (excluding Saturdays, Sundays,
and holidays) after such reorganization plan is submitted to it by the
Mayor, a resolution disapproving such reorganization.

§1-206.01. Retention of constitutional authority.

Notwithstanding any other provision of this chapter, the
Congress of the United States reserves the right, at any time, to
exercise its constitutional authority as legislature for the District,
by enacting legislation for the District on any subject, whether within
or without the scope of legislative power granted to the Council by this
chapter, including legislation to amend or repeal any law in force in
the District prior to or after enactment of this chapter and any act
passed by the Council.

§1-206.02. Limitations on the Council.

(a) The Council shall have no authority to pass any act
contrary to the provisions of this chapter except as specifically provided in this chapfer, or to:

(1) Impose any tax on property of the United States or
any of the several states;

(2) Lend the public credit for support of any
private undertaking,

(3) Enact any act, or enact any act to amend or repeal
any Act of Congress, which concerns the functions or property of the
United States or which is not restricted in its application exclusively
in or to the District;

(4) Enact any act, resolution, or rule with respect to
any provision of Title 11 (relating to organization and jurisdiction of
the District of Columbia courts);

(5) Impose any tax on the whole or any portion of the
personal income, either directly or at the source thereof, of any
individual not a resident of the District (the terms
"individual" and "resident" to be understood for the
purposes of this paragraph as they are defined in § 47-1801.04);

(6) Enact any act, resolution, or rule which permits the
building of any sfructure within the District of Columbia in excess of
the height limitations contained in § 6-601.05, and in effect on
December 24, 1973;

(7) Enact any act, resolution, or regulation with respect
to the Commission on Mental Health;

(8) Enact any act or regulation relating to the United
States District Court for the District of Columbia or any other court of
the United States in the District other than the District courts, or
relating to the duties or powers of the United States Attorney or the
United States Marshal for the District of Columbia;

(9) Enact any act, resolution, or rule with respect to
any provision of Title 23 (relating to criminal procedure), or with
respect to any provision of any law codified in Title 22 or 24 (relating
to crimes and treatment of prisoners), or with respect to any criminal
offense pertaining to articles subject to regulation under Chapter 45 of
Title 22 during the 48 full calendar months immediately following the
day on which the members of the Council first elected pursuant to this
chapter take office; or

(10) Enact any act, resolution, or rule with respect to
the District of Columbia Financial Responsibility and Management
Assistance Authority established under § 47-391.01(a).

(b) Nothing in this chapter shall be construed as vesting
in the District government any greater authority over the National
Zoological Park, the Nafional Guard of the District of Columbia. the
Washington Aqueduct, the National Capital Planning Commission, or,
except as otherwise specifically provided in this chapter, over any
federal agency, than was vested in the Commissioner prior to January 2,
1975.

(c)(1) Except acts of the Council which are submitted to
the President in accordance with Chapter I 1 of Title 31, United States
Code, any act which the Council determines, according to § I -
204.12(a), should take effect immediately because of emergency
circumstances, and acts proposing amendments to subchapter IV of this
chapter and except as provided in § 1-204.62(c) and § 1204.72(d)(l)
the Chairman of the Council shall transmit to the Speaker of the House
of Representatives, and the President of the Senate, a copy of each act
passed by the Council and signed by the Mayor, or vetoed by the Mayor
and repassed by two-thirds of the Council present and voting, each act
passed by the Council and allowed to become effective by the Mayor
without his signature, and each initiated act and act subject to
referendum which has been ratified by a majority of the registered
qualified electors voting on the initiative or referendum. Except as
provided in paragraph (2) of this subsection, such act shall take effect
upon the expiration of the 30-calendar-day period (excluding Saturdays,
Sundays, and holidays, and any day on which neither House is in session
because of an adjournment sine die, a recess of more than 3 days, or an
adjournment of more than 3 days) beginning on the day such act is
transmitted by the Chairman to the Speaker of the House of
Representatives and the President of the Senate, or upon the date
prescribed by such act, whichever is later, unless during such 30-day
period, there has been enacted into law a joint resolution disapproving
such act. In any case in which any such joint resolution disapproving
such an act has, within such 30-day period, passed both Houses of
Congress and has been transmitted to the President, such resolution,
upon becoming law, subsequent to the expiration of such 30-day period,
shall be deemed to have repealed such act, as of the date such
resolution becomes law. The provisions of § 1-206.04, except
subsections (d), (e), and (f) of such section, shall apply with respect
to any joint resolution disapproving any act pursuant to this paragraph.

(2) In the case of any such act transmitted by the
Chairman with respect to any act codified in Title 22, 23, or 24 of the
District of Columbia Code, such act shall take effect at the end of the
60-day period beginning on the day such act is transmitted by the
Chairman to the Speaker of the House of Representatives and the
President of the Senate unless, during such 60-day period, there has
been enacted into law a joint resolution disapproving such act. In any
case in which any such joint resolution disapproving such an act has,
within such 60-day period. passed both Houses of Congress and has been
transmitted to the President, such resolution. upon becoming law
subsequent to the expiration of such 60-day period shall be deemed to
have repealed such act, as of the date such resolution becomes law. The
provisions of § 1-206.04, relating to an expedited procedure for
consideration of joint resolutions, shall apply to a joint resolution
disapproving such act as specified in this paragraph.

(3) The Council shall submit with each act transmitted
under this subsection an estimate of the costs which will be incurred by
the District of Columbia as a result of the enactment of the act in each
of the first 4 fiscal years for which the act is in effect, together
with a statement of the basis for such estimate.

28 U.S.C. § 1651. Writs

(a) The Supreme Court and all courts established by Act
of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of
law.

(b) An alternative writ or rule nisi may be issued by a
justice or judge of a court which has jurisdiction.

28 U.S.C. § 2201. Creation of remedy

(a) In a case of actual controversy within its
jurisdiction, except with respect to Federal taxes other than actions
brought under section 7428 of the Internal Revenue Code of 1986 [

26 USCS
§74281, a proceeding under section 505 or 1146
of title 11, or in any civil action involving an antidumping or
countervailing duty proceeding regarding a class or kind of merchandise
of a free trade area country (as defined in section 516A(f)(10) of the
Tariff Act of 1930 {

19 USCS
§1516a(f)(l0)]), as determined by the
administering authority, any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether or
not further relief is or could be sought. Any such declaration shall
have the force and effect of a final judgment or decree and shall be
reviewable as such.

(b) For limitations on actions brought with respect to
drug patents see section 505 or 512 of the Federal Food, Drug, and
Cosmetic Act [21 USCS ** 355 or 360b].

D.C. Official Code
§38-1802.10. Application of law

d) Waiver of application of duplicate and conflicting
provisions. -- Notwithstanding any other provision of law, and except as
otherwise provided in this subchapter, no provision of any law regarding the establishment, administration, or operation
of public charter schools in the District of Columbia shall apply with
respect to a public charter school or an eligible chartering authority
to the extent that the provision duplicates or is inconsistent with any
provision of this subchapter.

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Plaintiffs'
Memorandum in Opposition to Defendant's Motion to Dismiss the complaint,
or in the Alternative, for Summary Judgment were hand-delivered this
20th day of June, 2003 to the following persons:

2. In McIntosh v. Washington, 395 A.2d 744, 748 (D.C.
1978), the Court of Appeals stated that a court possessing general
equity jurisdiction has authority to grant declaratory relief as an
incidental power inherent in such jurisdiction, and that "the
Superior Court possess[es] general equity jurisdiction." (Citations
omitted). See also, 28 U.S.C. § 2201 et seq. ("any court of the
United States, upon the filing of an appropriate pleading. may declare
the rights and other legal relations of any interested party"), and
28 U.S.C. § 1651 ("all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their respective
jurisdictions").

3. As indicated in our supplemental pleadings, Super. Ct.
Civ. Rule 81(b), maintains that "[r]elief heretofore available by
mandamus ... may be obtained by appropriate action or by appropriate
motion under the practice prescribed in these Rules.".

5. The Mayor either does not understand this distinction or
is intentionally blurring the lines. For example, the Mayor maintains
that the Council must proceed in quo warranto, because "the
appropriate vehicle for plaintiffs' attempt to remove the incumbent IG
is through a quo warranto proceeding." Mayor Memorandum at 17. The
Council, however, is not seeking to remove the incumbent Inspector
General, nor is it seeking a court order that he be removed.

6. The Mayor gets it right in the final sentence of
footnote 5 of his Memorandum: "In other words, the legislature must
be exercising its legitimate legislative powers, and not encroaching on
the executive power of removal." Mayor Memorandum at 9, n. 5. In
the abolition cases, if the abolishment of an office had a purpose
beyond changing officers. the legislature was acting within its
authority to abolish and create offices. If it was acting within its own
authority, the legislature, by definition, was not encroaching upon the
executive power of removal.

7. In its footnote 8, citing Bishop v. Wood, 426 U.S.
341(1976) and Cleveland Board of Education v. Loudermill, 470 U.S. 532
(1985), the Mayor suggests that the incumbent Inspector General will be
deprived of a property interest in his position without due process, as
"for cause" employees have a property interest in their
employment and may not be discharged without notice and an opportunity
to be heard. However, these cases involved a removal for cause by
executive action pursuant to an existing statute. This case involves the
vacation of office incident to a legislative change, not a removal for
cause. As is clear under well-established law, an incumbent has no
property interest in the office which he or she holds; the opportunity
to hold public office is considered a privilege. 63C Am. Jur. 2d Public
Officers and Employees §11; Dodge v. Board of Education, 302 U.S. 74,
80 (1937); Butler v. Pennsylvania, 501 U.S. 402 (1850).

8. The requirement that the Inspector General be
appointed "without regard to party affiliation" is in the
statute, as amended, and was in the statute prior to the amendments.

9. "The Inspector General shall . . . Forward to
the Mayor, within a reasonable time of reporting evidence of criminal
wrongdoing to the Office of the U.S. Attorney or other law enforcement
office, any report regarding the evidence, if appropriate."
D.C. Official Code §2-302.08(a)(3)(F)(ii) (emphasis added).

10. Section 8, clause 17 of the Constitution provides that
Congress shall have the power "[t]o exercise exclusive Legislation
in all Cases whatsoever, over such District (not exceeding fend Miles
square) as may be by Cession or particular States, and the Acceptance of
Congress, become Seat of Government of the United States ...".

15. The Court contrasted this to an earlier, express
transfer of the public services program to the District of Columbia
which "required express congressional legislation since it was
entrusted to the Department of Labor by a federal statute that is not
applicable exclusively to the District of Columbia." 442 A.2d at
115.

23. Although the Control Board often acted in a manner
akin to the Wizard of Oz, it was far from infallible, as is evidenced by
the current fiscal problems confronting the District's privatized health
care system for indigents that was created after the Control Board, over
the Council's objection, enacted legislation abolishing D.C. General
Hospital.